2018 Farm Bill Makes Hemp Production Legal Only In Certain Situations

Image of hemp research plots with University of Kentucky. Image by University of Kentucky College of Agriculture, Food and Environment.

Farmers
across the country are looking to begin producing hemp. The 2014 Farm Bill allowed states to develop
hemp research programs, but the 2018 Farm Bill significantly changes the
classification of hemp and allows states to begin developing regulations for
legal hemp production. The 2018 Farm Bill
removes hemp from the definition of marijuana under the Controlled Substances Act and allows states and tribal governments
to begin developing hemp production plans.
Hemp produced under these plans will potentially be eligible for federal
crop insurance. Although the 2018 Farm
Bill has made changes to hemp, it is still currently not legal to grow hemp in
Maryland until the state develops and has an approved hemp production plan in
place.

Changes to the Controlled
Substances Act

The
2018 Farm Bill declassifies hemp as a controlled substance. Under Section 12619 classification the
definition of marijuana does not include hemp.
Section 10113 defines hemp to be “the plant Cannabis sativa L. and any
part of that plant, including the seeds thereof and all derivatives, extracts,
cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or
not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3
percent on a dry weight basis.” Any hemp
plants with a delta-9 tetrahydrocannabinol concentration (THC) level greater
than 0.3 percent on a dry weight basis is considered marijuana and still
illegal under federal law.

State and Federal Hemp Production Plans

Although
hemp is no longer a Schedule 1 drug, this does not mean it is legal to
grow. To be legal, Section 10113
requires that a state, tribe, or federal government develop a hemp production
plan. Using such a hemp production plan,
a state, tribe, or federal government will monitor producers and regulate hemp production. Section 10113 lays out two routes for a
producer to legally begin producing hemp.
The first route is for a state or tribal government to take charge of
regulating hemp production within their boundaries. To do so, a state department of agriculture
will submit to USDA a hemp production plan for approval. The hemp production plan must include:

The system of land where hemp is being produced,
including the legal description of the land.
The system will need to maintain land records for at least three years.

Testing procedures to demonstrate that hemp
produced has less than 0.3 percent THC concentration level per dry weight
basis.

Procedures for destroying any plants and
products with THC concentrations higher than allowed by the law.

Procedures to enforce the law.

Procedures for conducting at minimum annual
inspections of a random sample of hemp producers to verify hemp produced in the
state does not violate the law.

A system to convey hemp producers information to
USDA

Certification for USDA that the state or tribe
has the resources and personnel to carry out the requirements of the hemp
production plan.

University of Kentucky hemp research plots. Image by University of Kentucky.

A producer must comply first with
the state’s hemp production plan before legally growing hemp. Currently, these plans are expected to take a
year to 18 months for states to finalize and USDA to approve.

If
the state or tribal government does not have an approved production plan, then
a producer may still be able to produce hemp under a hemp production plan
developed by USDA. For example, if state
law still classifies hemp as a controlled substance, then Section 10113 will
not preempt this. Section 10113 allows
states or tribal governments explicitly to prevent hemp production in their
boundaries. If the state or tribal
government does not criminalize hemp production, then the USDA hemp production
plan will need to meet the same minimum criteria required for states and tribal
governments.

Violations

Section 10113 lays
out potential violations. A producer can
negligently violate a state plan, tribal government plan, or USDA hemp
production plan by not providing a proper legal description of the land where
the hemp will be produced, by failing to obtain the required license or other
authorization required under the plan before producing hemp, and by producing
hemp with a THC level greater than 0.3 percent on a dry weight basis; these are
just some examples of potential violations.

With
the first negligent violation, a producer can correct the violation by
complying with a corrective action plan developed by the state, tribal
government, or USDA. Three negligent
violations in five years will result in barring the producer from producing
hemp for five years. Note that Section
10113 does not allow anyone with a felony drug conviction within the past ten
years to grow hemp under a hemp production plan.

Crop Insurance Coverage

Section
11119 adds hemp to the list of insurable agricultural commodities under the Federal Crop Insurance Act. Other provisions in the Farm Bill will allow
USDA to develop pilot programs which will allow for the establishment of hemp
coverage.

Status of Industrial Hemp in Maryland

Maryland’s
criminal law currently excludes hemp from the definition of marijuana. Section 5-101 excludes “the plant
Cannabis sativa L. and any part of such plant, whether growing or not, with a
delta-9-tetrahydrocannabinol concentration that does not exceed 0.3% on a dry
weight basis.” (Md. Code Ann., Crim. Law. § 5-101 (r)(2)(vi)). Currently, the Maryland General Assembly
would need to give MDA the authority to create a hemp production plan (Md. Code Ann., Agric. §§ 14-101 to
14-102). MDA only has the authority to
create a hemp pilot research program and would need additional authority to
develop the hemp production plan and any additional protections that the
General Assembly may want to add beyond what the 2018 Farm Bill does. Until
then, hemp remains illegal to produce in the state.

One
important note about the 2018 Farm Bill, Section 10114 allows for hemp products
to be transported freely through states.
States can still ban hemp products, but the state would not be able to
limit transportation through the state of hemp products bound for other states. But until hemp production plans are approved
by USDA, hemp can only legally be grown under existing state research programs.